Disappearance of a Religious Freedom Advisor

 

Former 3-term Congressman Mark Walker couldn't even hang onto the sinecure (job with no duties) that Trump invented for him as a consolation prize after he ended Walker's political career by endorsing Ted Budd instead of him for the US Senate in 2022 and then squeak-toy Addison McDowell instead of him for Congress in the 2024 Republican primary in the 6th Congressional District. Walker had even trudged to Mar-a-Lago like a good little supplicant and begged Trump to endorse him instead of Ted Budd for Senate and reportedly agreed to drop out and run for a congressional seat if only Trump would endorse him for that. Kissing the ring sucks when it's both fruitless and the boss stinks.

So because of whatever sympathy Trump felt for the man, he invented a title specially for Walker: Ambassador-at-Large for International Religious Freedom, to be attached to the State Department, a completely made-up job with no defined duties. But appointment to ambassador required Senate approval, and for whatever reasons, both senators Thom Tillis and Ted Budd wouldn't support him. The nomination died, and Trump went another route, appointed Walker as "Principal Advisor on Global Religious Freedom" in a wholly invented new position at the State Department. Walker lasted just 90 days. On April 21 (just last week!), the State Department made the terse announcement that Mark Walker no longer worked at the State Department  -- no explanation given.

Walker used to be a pastor of a church and casts a mild aura, though he was tough enough to beat Phil Berger Jr. in his very first Republican primary -- and the subsequent runoff -- for the 6th CD in 2014. The entire Berger Family Machine had been in full gear for Junior, and Berger did indeed beat Walker in the first round: 34.27% to 25.20% (in a very crowded field of seven other candidates). But by the runoff between Berger and Walker in July 2014, Walker had turned it around and he beat young Berger by 20 points -- 59.85% to Berger's 40%. Walker won that runoff by hitting every church picnic and community rag-pulling across the 6th, showing the people what a mild-mannered and approachable Christian he was, a defender of God and American rural values. He was better at grassroots campaigning than Berger, and he sharpened his attack on Berger, implying he was essentially a bought-and-paid for arm of a machine that feathered its own nest -- thus reminding voters of the Berger Family reputation for shady power moves (a reputation that would ultimately end Phil Berger Senior's career after he became a failed promoter of gambling casinos). I suspect Walker beat Phil Berger Jr. at the cost of making an eternal enemy out of Daddy, and I have to wonder if Berger animosity is behind the downward trajectory of Walker's career.  

Anyway, apparently the Trump State Department no longer needs the services of an advisor on global religious freedom.

 

The Real, Fulminating Threat to Democracy in NC

 

Paul Newby,
"His Benevolence"

In Sunday's News&Observer, UNC Law School Professor Gene Nichol had a stark round-up of the "Six Factors That Brought Down NC Democracy in 2024." Nichol lays much of the blame for the precarious condition of democracy in North Carolina at the doorstep of the state Supreme Court, "transformed into the most partisan appellate tribunal in the United States" under the ascendancy of Chief Justice Paul Newby (a.k.a., "The Smiling Eff You") who thinks the General Assembly under Republican super-majorities is the “sacrosanct fulfillment of the people’s will.” In other words, the hand of the Almighty has bestowed its blessings on Phil Berger, and we all must do as he wishes.

Nichol:

Broadly speaking, state separation of powers issues are left in the hands of state supreme courts, unreviewable by the federal judiciary. So when the state Supreme Court says the General Assembly can do whatever it wants — including cheating on redistricting and overriding the results of elections through sore loser laws — regardless of the clear limits of the North Carolina constitution, the people of the state have no legal or effective political recourse. Such are the wages of a Supreme Court refusing to carry out its prescribed duty of independent judicial review.

The other four partisan Republicans who follow the leadership of Paul Newby:

1. Phil Berger Jr., "Baby Berger," whose very presence on the Court owes much to the power of his big daddy, Phil Senior. Junior is a "nepo baby." We wrote about his rise in January 2019. His term isn't up until 2028.

2. Tamara Barringer, the former Republican state senator until she was defeated in the 2018 Blue Wave by Democrat Sam Searcy, ran for and won her associate justice seat in 2020. She's next up for reelection in 2028.

3. Richard Dietz, whose term runs out in 2030, was originally appointed to the Court of Appeals in 2014 by Gov. Pat McCrory. 

4. Trey Allen, who clerked for Paul Newby (a.k.a., "Rumpelstiltskin"), was elected in 2022, so he's safe until 2030. 

We have a lot of years of suffering ahead of us before any potential break in the clouds.

Rumplestiltskin

The Corruption on the NC Supreme Court Is Right Out in the Open

 

Daddy Dearest, with Junior

RALEIGH North Carolina Supreme Court Justice Phil Berger Jr. will not be recused from two high-profile cases involving his father, the Republican Senate leader. 

The court’s Republican justices denied Democratic Gov. Roy Cooper’s motion requesting Berger Jr.’s recusal on Friday, writing that the Senate leader was involved in the case in an official capacity only — not a personal one. 

“We believe that Justice Berger can and will execute his responsibilities in this case fairly and impartially,” the majority wrote. 

Rather than deciding on recusal himself, Berger Jr. referred the motion to the full court to consider. 

In a dissenting opinion, the court’s two Democrats noted that the Code of Judicial Conduct makes no distinction between family members acting in their official capacity and personal capacity in its rules around recusal. Justice Allison Riggs, who authored the dissent, noted that Justice Berger previously refused to recuse himself in another case involving his father that challenged the state’s voter ID law. 

“To achieve the desired outcome in this case, members of this Court who typically ascribe to a strict textualist philosophy are eager to add words to the Code of Judicial Conduct,” Riggs wrote. “... I suspect the reason we have not changed these rules is simple — the optics of overhauling existing ethics standards to accommodate Justice Berger and Senator Berger are problematic, to put it mildly.” 

In both cases, Cooper is challenging laws passed by the General Assembly that strip him of his appointments to various boards and commissions. One of those laws, which is currently blocked by a lower court’s order, would drastically restructure state and local election boards and give all appointments to legislative leaders — including Berger Jr.’s father, Senate leader Phil Berger, who is named as a defendant in both cases....

(Kyle Ingram)

"They're Coming For Us"

A friend this past weekend said that to me, the title above, in reference to the recent wave of authoritarian crackdowns on obviously non-conforming people, not that she is being explicitly harassed and punished for certain classes of behavior that the conservative majority finds condemnable. But she intends to stand up for the minority, especially young women who need abortions, and she feels the grip of power closing tightly around even the ability to protest. Persecuted groups tend to be, all things considered, relatively powerless to resist. They can get loud. That's about it. But NC Republicans have a law for that too, H40, the so-called "anti-rioting bill" which is moving forward and which intends to chill the resistance to Republican overreach.

Phil Berger Jr.

New anti-abortion laws. Heckling of public school teachers and the restrictions on education (especially the education of history, understanding and empathy). New restraints on voting. The further gerrymanding of the political (and policy) map, along with the ten thousand hobbling ropes conservative regimes throw around the capering legs of the young.

On top of the legislative power we fear sits the judicial in North Carolina, especially the Supreme Court, swelling like a June thunderhead, because the Court has already signaled that it will be the most nakedly partisan Court in history. They seem intent on giving the General Assembly bosses a free hand for making conservative orthodoxy eternal. I learned from Gene Nichols that Supreme Court Justice Phil Berger Jr. recently appeared to gloat (boasted "giddily" in a court opinion, according to Nichols) about a news article which described “a lasting Republican grip on the Supreme Court.” The Death Grip.

Hell, as soon as Chief Justice Paul Newby got his Republican majority, in January (last month, y'all!), they used that 5-2 majority to order reconsiderations of recent court decisions from the Democratic era -- the case on voter photo I.D. and a gerrymandering case involving NC State Senate seats. While ordering rehearings, the five conservatives on the Court could point to no changed circumstance to justify the exceedingly rare decision to re-litigate recent Court decisions. The only plausible reason was their new crushing majority. The makeup of the Court changed, the numbers shifted, and they clearly intend to use their power to reverse and dismantle on purely partisan grounds.

Never before had this happened. Never. Taking legal revenge simply because the membership on the Court had changed. The essence of a destructive and oppressive partisanship. Which is, indeed, coming for us.

What Happened at the NC Supreme Court RE the Voter ID Amendment?

 

Justice Anita Earls

No, the North Carolina Supreme Court did not overturn the voter ID amendment to the state's constitution (which has never been enforced anyway, because of legal challenges). The Court, voting 4-3 along partisan lines, suspended a final decision on the legality of not one but two amendments -- voter ID and an income tax cap -- and sent the case back to the original Wake Superior Court judge who heard it (and who had found the voter ID amendment was unconstitutional because some 28 legislators who wrote it and passed it had been racially gerrymandered into their districts, which were guaranteed to elect them and then to keep them in Raleigh 'til the ending of time). 

The original Superior Court judge has now been ordered to find more facts:

If the answer to any of these questions is “yes,” the amendment should be invalidated:

Does the voter ID amendment immunize legislators from democratic accountability?

Does the voter ID amendment perpetuate the ongoing exclusion of a category of voters from the political process?

Does the voter ID amendment intentionally discriminate against a particular category of citizens who were also discriminated against in the political process leading to the legislators’ election (redistricting of House and Senate seats)?

If the answer to all the questions is “no,” or if there were not enough legislators elected in unconstitutionally gerrymandered districts to make a difference in getting proposed changes to voters, the amendment must stand. (Lynn Bonner)

In other words, the Democratic majority on the NC Supreme Court, led by Associate Justice Anita Earls, is perfectly prepared to make a new, shattering precedent.

According to law professor Rick Pildes, the Court held that the House and Senate legislators in office due to racial gerrymandering (already identified by district in the Federal law suit against voter ID that went to the 4th Circuit Court of Appeals in 2020), they absolutely can enact legislation, anything they want to dream up, any repugnant insult to basic human decency. They can also propose constitutional amendments (as the Republican super-majority did in 2018, proposing a total of six constitutional amendments). The one thing they cannot do, according to the Court, is propose amendments that earn a "yes" on the three questions above.

Unprecedented Court action? (if the voter ID amendment ends up invalidated by this court, as seems likely), a big Yes. Professor Nick Stepanopoulos, 'nother law school professor: "This [Earls' opinion] is the remedy that redistricting violations have always logically required — but that courts have been too timid, until now, to impose. An unlawfully constituted legislature shouldn’t be able to make law (at least not law that depends on that illegal composition)."

“We now have a North Carolina Supreme Court decision declaring that our legislature does not have unlimited authority to amend the constitution,” Kym Meyer, a lawyer representing the NAACP, said in an interview. “It’s a huge win on that point.”

So, yeah, it's important what came out of the NC Supreme Court this week, but it ain't over. (And the Republicans are going ape-shite. BergerMoore will manage to get the case in front of the conservatives on the US Supreme Court, you watch!)

NOTE: The case is NAACP v. Moore/Berger. You might remember that the NAACP wanted Justice Phil Berger Jr., defendant Phil Berger’s son, and Justice Tamara Barringer, who voted to approve the constitutional amendments when she was a member of the state Senate, to recuse themselves or be disqualified from hearing the case (see "The Berger Dominion"). In the end, all seven justices participated.

The Berger Dominion

So there's a watershed legal case testing a judge's duty for recusal currently in the hands of the North Carolina Supreme Court, and here's where it started:

2018 -- Republican majorities in the General Assembly, led by Phil Berger and Tim Moore, put two ballot initiatives to the voters, who passed them -- a mandate for a voter photo ID and a constitutional cap on state income taxes. (The GOP's previous attempt to impose voter photo IDs had been ruled unconstitutional.)

2019 -- A North Carolina trial judge strikes down the amendments, declaring that since many legislators were illegitimately elected from what were previously declared as racially biased districts, they lacked the power to put the questions on the ballot.

2020 -- NC Court of Appeals overturns that trial court decision, and the case gets appealed to the NC Supreme Court.

Phil Berger Jr. 

August 2021 -- Supreme Court schedules arguments by opposing sides but pauses the proceedings after the NAACP requests that justices Phil Berger Jr. and Tamara Barringer recuse themselves from hearing the case. The reasons for recusal: Berger is the son of one of the defendants and Barringer voted for passage of the amendments as an NC senator.

30 Seconds Later -- NCGOP begins howling about a Democratic power grab at the Court.

“The attempt to disqualify them from hearing cases the voters elected them to hear is a subversion of the will of the people and an insult to every informed voter,” said House Speaker Tim Moore, who is also named as a defendant in the NAACP lawsuit.

October 2021 -- A majority of the Supreme Court votes to take the issue seriously -- should Berger and Barringer recuse themselves or be forcibly recused? The Court is 4 Ds to 3 Rs, so over the strenuous dissents by the Republican minority, the Democratic majority decides to halt proceedings until briefs can be submitted by both sides addressing 20 questions about judicial recusal, especially this one: “Does this court have the authority to require the involuntary recusal of a justice who does not believe that self-recusal is appropriate?” Those legal briefs were due at the court this week.

According to the Associated Press, that question alone suggests that one, or both (Berger and Barringer), have indicated that they would not recuse themselves. "Neither responded to a request for comment that The Associated Press asked a court spokesperson to pass along to them."

Did the trial judge back in 2019 go way out on a legal limb? I personally wouldn't want to put all my weight on that particular twig, that a legally elected official's acts are illegitimate because the district that elected him was racially biased. He/she was elected and had no control over who made up the electorate.

Phil Berger Sr.

The case for Berger Junior's recusal seems so obvious it hurts my eyes. The state judicial conduct code says judges should disqualify themselves "when asked by a legal party," if they have “personal knowledge of disputed evidentiary facts” or if the judge’s near-relative is “a party to the proceeding.”

The judicial conduct code requires disqualification even if a near relative can in fact be "impartial and capable of presiding fairly over the matter before them,” NAACP attorney Kym Hunter wrote in July. Berger Junior will for sure never recuse himself. Will his fellow justices let him get away with that and further taint the North Carolina judiciary?

Cheri Beasley Is Now Winning the Chief Justice Race

 

Sitting Chief Justice Cheri Beasley is now leading Rumpelstiltskin-in-a-former-life Paul Newby for the privilege of running the court. The vote is currently 2,685,809 (Beasley) v. 2,684,691 (Newby), a lead of 1,118 votes.

The deadline for Absentee-by-Mail ballots was yesterday, and the counting of those votes into last night, along with several thousand provisionals across the state, account for Beasley's sudden reversal of fortune. She was trailing on election night, and some of us thought that she had sure nuf lost, an eventuality that hurt as much as the Cal Cunningham trainwreck.

Newby, currently an associate justice on the NC Supreme Court, is known for extreme partisan views mixed with dominionist religiosity (and possibly the ability to spin gold out of straw).

If that thousand-vote lead holds, Beasley will be presiding over a 5-2 Democratic majority on the state's high court. Phil Berger Jr., whose main talent appears to be upward mobility, beat Lucy Inman for Newby's open seat by 69,417 votes (1.3%), and Republican Tamara Barringer beat Democrat incumbent Mark Davis by almost 128,000 (2.4%). All the Democratic candidates for the Court of Appeals lost to Republicans, but all those races were close. The Republicans generally won with a 2.5% edge. But the Court of Appeals is going to be a tough venue for certain kinds of justice for the foreseeable future.

First Berger Jr., Then Barringer, and Now Stroud

Judge Donna Stroud

Potential Republican candidates for the Paul Newby seat on the NC Supreme Court are forming a scrum. We've noted Phil Berger Jr.'s interest in the seat and Tamara Barringer's. Now Jonathan Kappler says NC Court of Appeals Judge Donna Stroud is eyeing it too.

Source Ballotpedia: Stroud received her bachelor's degree in government summa cum laude from Campbell University at Buies Creek in 1985. She received her J.D. magna cum laude from Campbell University School of Law in 1988. She also earned an LL.M. from Duke University School of Law in 2014. She began her legal career in 1988 with the law firm Kirk, Gay, Kirk, Gwynn & Howell. She then joined the firm Gay, Stroud & Jackson, LLP in 1995. Stroud worked as a lawyer with this firm until 2004. During this time, she also served as an arbitrator for the 10th Judicial District Court and as a certified superior court mediator. In 2004, she was elected to the Wake County District Court (10th Judicial District), where she served until her election to the North Carolina Court of Appeals in 2006. She was reelected to an eight-year term in 2014. Along with fulfilling her judicial duties, Stroud currently works as an adjunct law professor at Campbell University School of Law.

In other words (and on paper), she's better qualified for the Supreme Court than either Phil Berger Jr. or Tamara Barringer.

Could be a really interesting Republican judicial primary in 2020 for the Paul Newby seat on the NC Supreme Court.

Barringer to Berger Jr.: "Not So Fast There, Scooter!"

Sen. Tamara Barringer, 2016, calling for
repeal of HB2 ("bathroom bill")
WRAL photo

Musical Chairs on NC's Highest Court
Republican Chief Justice Mark Martin announced he was stepping down this month, and Governor Cooper gets to appoint his replacement (who'll have to run for the seat in 2020). Republican Associate Justice Paul Newby immediately announced he would be giving up the Newby seat to run for Chief Justice next year. Soon after, Republican Phil Berger Jr. announced he would run for the Newby seat (as did Democratic Court of Appeals Judge Lucy Inman).

Yesterday former NC Senator Tamara Barringer announced she will also be running in 2020 for the Newby seat.

My first thought: "D'oh! Tamara Barringer saying (in effect) to Phil Berger Jr., 'I don't care who your daddy is! I'm running for the same thing you think you're entitled to!' "

Interesting, since, as a state senator, Barringer was always under Father Berger's thumb, though she's been capable of a streak of independence (see the photo).

Contrary to what I initially thought (and hattip to Gerry Cohen), there will be judicial primaries in North Carolina in 2020. The elimination of primaries for partisan judge races applied only to 2018, which was one of those Berger/Moore schemes supposed to sow chaos among Democrats. Didn't work that way, and we now have a 5-2 Democratic majority on the Supreme Court likely to move to 6-1 when Cooper appoints Martin's replacement.

If there's a Berger Jr. - Barringer primary, that'll be interesting to watch. If. Many other factors could change that: If Cooper appoints one of the sitting Democratic justices as Chief, that'll open another named seat, and Barringer could elect to run for that rather than going head to head with Berger.

Barringer had been a four-term state senator, representing the Wake County District 17, until last fall when Democrat Sam Searcy flipped the seat. Wake County has been trending away from hardline conservatism, but in announcing yesterday, Barringer sounded pretty hardcore conservative:

“In the last week, I received many calls encouraging me to run for the Supreme Court,” Barringer said in a press release Tuesday. “All of you know my love for the law and the importance of maintaining a strict Constitutional interpretation of the laws passed by the General Assembly. It is imperative that we have justices who refrain from legislating from the bench” (emphasis added).

But in 2016, she was the first Republican lawmaker to call for the "substantial and immediate" repeal of House Bill 2 due to the measure's "unintended consequences" (WRAL).

Inman v. Berger Jr. for the "Newby Seat" on the NC Supreme Court?

We previously discussed Phil Berger Junior's intention of running for the Justice Paul Newby seat on the Supreme Court, if (as promised) Paul Newby gives up that seat to run for Chief Justice (which seems likely at the moment).

Democratic Judge Lucy Inman, who also sits with Berger Junior on the NC Court of Appeals, just announced that she'll also be running for Newby's seat.

Judge Lucy Inman was elected to the Court of Appeals in 2014. She is the daughter of author Lucy Daniels, the granddaughter of former White House Press Secretary Jonathan W. Daniels, and the great-granddaughter of Navy Secretary Josephus Daniels. Her family famously owned the Raleigh News and Observer from 1894 to 1995.

She worked for a short time as a reporter on the family paper, then entered law school at UNC-Chapel Hill and was in private practice, 1992 to 2010, when she was appointed a special Superior Court judge by Governor Bev Perdue. Four years later she ran for a vacant seat on the Court of Appeals and won.

She's recently suffered a serious storm of mental issues in her immediate family. Last November her son was caught "burning a cross in a Cary park and later making violent threats to a synagogue in Cary, Sha’arei Shalom, which belongs to a branch of Messianic Judaism" (Will Doran). Inman issued a statement at the time: “Our family is inclusive and respectful of all people. Sadly, we, like many families, are dealing in this case with a mental illness, which we recognize and for which we have sought and continue to seek treatment. ... As deeply concerned parents, we apologize profusely to the Jewish community and to all who have been impacted. And we are treating this situation with utmost seriousness.”

Inman's son made a brief appearance with his mother in a 2014 campaign video:

Phil Berger Jr's Daddy Helped Get Him on the Court of Appeals. Will He Also Get Him on the NC Supreme Court?

Phil Berger Jr.

Phil Berger Jr. just posted on his Facebook page that he wants to run for Associate Justice Paul Newby's seat on the state's Supreme Court, if Paul Newby jumps into a race for Chief Justice of the Court.

"I am interested in running" means "I am running."

A Short History of Phil Berger Sr's String-Pulling for Sonny Boy

Phil Senior did everything in his power to make sure that Phil Junior won a seat on the NC Court of Appeals in 2016, defeating a good incumbent judge, Linda Stephens.

But first, in 2014 Phil Senior tried to get his son a seat in the U.S. House of Representatives. Phil Junior ran for the seat vacated by Congressman Howard Coble (NC-6), backed by wads of money and the full-bore influence of Daddy Phil. What happened? Phil Junior lost the Republican Primary that year, which shocked everyone, not least of whom was his father.

Following quickly that humiliating defeat, Phil Junior got himself appointed to an administrative law judgeship, and didn't stick there long before he entered the race for the NC Court of Appeals with the full endorsement of the Tea Party Express (if you were inclined to doubt his partisan proclivities).

Daddy Phil wasn't done putting his thumb on the scales. At the last minute in the short session of the General Assembly in the summer of 2016, and as President of the Senate, Phil Berger Sr. saw to it that the law got changed as regards random "ballot order," insuring that candidates that belong to the same party as the sitting governor (Pat McCrory at that time) got listed first. So Phil Berger Jr. was listed first on the ballot.

Why does it matter? Numerous studies have shown that being listed first on a ballot can give that candidate at least a slight advantage, especially on down-ballot races like the Court of Appeals race where candidates aren’t as well-known as presidential or gubernatorial candidates. Indeed, Phil Berger Jr. won that 2016 race by a very slim margin ... a quarter of a percentage point.

What will Phil Berger Sr. do this time? First thing: Change that law he passed in 2016 so that candidates not of the governor's party get listed first.

Intercepted Letter -- "Terrible Decisions That Limit the Rights of Landowners"

Dear Editor:

On August 7, Judge Phil Berger Jr. authored an order that denied standing to a couple from Watauga County in their appeal of a case that involves the proposed asphalt plant near their home on the Doc and Merle Watson Scenic Byway, Hwy 421 near Boone. When constructed, this would be the second Tennessee-based Maymead plant in this small county. In that unpublished order, the first sentence of the “Factual and Procedural Background” puts forth four blatant errors of fact. Whether intentional or just the work of a blundering clerk, there is no excuse for such sloppy work from the NC Court of Appeals. One local attorney commented -- “All politics aside, this is one of the worst written findings I have ever read.”

Those misstatements could well have persuaded the other members of the three-judge panel to decide that the substantial legal arguments of the case were not worth considering, and so they took the easy route of agreeing to dismiss standing, an increasingly common practice when the court wants to avoid examining the real legal issues. This decision is contrary to the court’s own previous rulings on standing.

After a three and one half year fight by Watauga County, the Town of Boone, and local citizens, this case has still yet to have a fair hearing. The local Board of Adjustments' ten-day hearing was mishandled, the Superior Court judge admitted in Court that he had gone to see a movie instead of reading the briefs, and Judge Berger characterized the solid evidence presented on the standing issue as “bald assertion.” The undeniable errors of fact in his order will remain unchallenged unless the NC Supreme Court agrees to accept a petition for discretionary review.

These events bring my faith in the system to a new low, and it appears that justice through a fair hearing is sometimes just a fantasy. This is not just a local matter relevant to a small western NC community. It is part of an increasing frequency of terrible standing decisions that limit the ability of neighboring landowners to intervene in zoning disputes so as to not bother big corporations and disturb profits. When citizens and communities seeking to protect their health, property, and way of life have to spend 3 ½ years and hundreds of thousands of dollars without ever receiving a fair hearing, something is terribly wrong.

Judge Berger’s ruling can be read here: https://law.justia.com/cases/north-carolina/court-of-appeals/2018/17-1107.html

David Sengel

Boone, NC

NC Court of Appeals Rules for Maymead; Phil Berger's Little Boy Writes the Opinion

Yesterday the NC Court of Appeals ruled that the Henion family has no standing to contest the Maymead asphalt plant on the Doc and Merle Watson Scenic Byway. The Henions live virtually in the shadow of the plant.

A few things to know about the court's ruling:

1. The decision was written by Phil Berger Junior, the son of the most powerful Republican in the state who literally rigged the ballot in 2016 to get Junior elected to the Court of Appeals.

2. The decision was not published by the Court of Appeals, meaning it has no value as precedent. Unpublished, it is also not readily available to the public. Why, it's almost as though the Court was trying to hide it.

3. The Henions' only remaining option is to petition the state Supreme Court for discretionary review. At least that way someone will see the crappiest piece of legal writing that ever went down.

4. By focusing entirely on the standing of the plaintiffs to sue, Berger's ruling conveniently ignores the issues raised and skirts the merits of the case. He took the easy way out to not bother big business and corporate profits.

Phil Berger Jr.

5. The ruling makes errors of fact, stating that "the Hamptons" controlled Maymead, presumably through ownership. They didn't and don't.

6. Phil Berger Jr. has been accused (July of this year) of campaign finance fraud in his 2016 campaign finance filings with the State Board of Elections. According to the complaint, there were three “suspicious” donations to Berger's campaign for his judgeship that raise questions about whether the named donors were being used as conduits for “mystery money” from other sources who did not want to be identified publicly. That, among other irregularities, omissions, and obfuscations.

Blind Justice the North Carolina Way

North Carolina judges -- District Court judges, Superior Court judges, Judges on the North Carolina Court of Appeals and the Supreme Court -- all of them are currently political targets. General Assembly Republicans are fucking with them big time.

Why are Republican bosses mad at judges? Because North Carolina judges have found so many of their laws (mainly power-grabs) unconstitutional. Simple as that. When judges find your ambitions out of line, what do you do? Change your ambitions? Or change the fucking judges. Make them work for partisan approval. Put them in your pocket.

Phil Berger, your office is calling.

Berger and his colleagues want to redistrict judicial seats -- ah, the magic of creative gerrymandering! -- thus double-bunking an impressive kill list (Susan Ladd):

district court judges  25% of them double-bunked, including 43% of all black or African-American district court judges and 31% of female district court judges.

superior court judges 27% of current judges double-bunked, including 18% of black or African-American superior court judges and 32% of females.

You know what double-bunking is, right? Political Thunder Dome for People We Can Do Without: two judges enter, one judge leaves. Guaranteed to deliver, at one stroke, 12.5% fewer district court judges and 13.5% fewer superior court judges, with no political effort whatsoever. Just draw them into oblivion with lines on a map. (100% of Hispanic female judges are double-bunked, by the way, all one of her.)

Plus the Republicans also want to make judges run for reelection every two years under partisan banners. Can you imagine? Every two years, all judges in a free-for-all election, with no primaries, meaning possibly dozens of competing names on a General Election partisan ballot -- my God are they kidding?

Kidding no. Bulldozing yes.

Berger's real goal is getting to appoint the judiciary himself. (Brief but important footnote: he already got his boy Phil Berger Junior on the NC Court of Appeals, so you can recognize the itch.) Berger wants to change the state's Constitution to eliminate elections for judges altogether, make them all appointed by a "merit" system, run, just incidentally, by Berger et al. in the General Assembly. Not making this up.

Susan Ladd suggests that we'll know something more definite in January, after the General Assembly reconvenes and Phil Berger tells them what they're gonna do. Put a constitutional amendment on the ballot this coming May to change the way judges get onto the bench? It'll be May, because turnout is guaranteed to be way down for a May primary, and maybe you can sneak something highly questionable through. That's how they did Amendment One, their infamous constitutional amendment to outlaw gay marriage -- put it on a May primary ballot, and it passed.

Meanwhile, On the Judicial Front in Watauga County...

The Watauga County Republican Party continues to distinguish itself as a black frost over the very concept of a free election. Without entering any Republican candidates in Boone town elections on November 7, they nevertheless fought through several levels of court to try to keep an Early Voting polling place out of the ASU student union. That failed, utterly, and they're now using that failure -- the length of time it took to adjudicate the issue -- as

the basis for a brand new escalation: Early Voting at ASU was illegal, says the "Election Protest" signed by Anne Marie Yates, and therefore the elections must be done over, because there wasn't sufficient notice to the public (minimum of 20 days by statute) following the judge's rejection of the Republican argument that there should be no Early Voting in the ASU Student Union. Here's the logic, if I'm following it: First, Republicans blockade Early Voting at the student union to the full extent of their legal rights, and when that blockade finally crumbles, they argue that the judge had no right to the order he made because the calendar had run out on proper public notice. Run out the calendar on justice and you can tie the hands of judges in adjudicating the rights of the people. That's the argument Yates's lawyer Nathan Miller is making. No kidding.

The judge had no right. That's the common thread of this post.

Anne Marie Yates's suit would nullify all municipal elections in Watauga County -- not just in Boone but Blowing Rock too, and Seven Devils and Beech Mountain.

Why are they doing this? What do they hope to gain? Just the pleasure of pulling down the temple?

NC Supremes Reverse the Court of Appeals, Restore the Block on the Republican Takeover of the Board of Elections

Last night the North Carolina Supreme Court reversed a late-last-week ruling by the NC Court of Appeals, thereby restoring a temporary hold on the implementation of the NCGOP's rewrite of all the boards of elections until a trial on the merits can be held on March 7.

To recap the background:

1. In Special Session # 4 of the NC General Assembly on December 15, immediately after Democrat Roy Cooper was declared the winner of the governor's race, the Republican bosses in the NCGA hatched a new law (Senate Bill 4) giving themselves the edge in dominating all the boards of elections in the state and took power away from the new governor.

2. The implementation of S4 was halted by Wake Superior Court Senior Judge Donald Stephens, but Republican Chief Justice of the NC Supreme Court, Mark Martin, "plucked" the case away from Judge Stephens and assigned it to a three-judge panel appointed by himself.

3. Surprise, followed by Republican gasps: The specially appointed three-judge panel ruled unanimously to keep Judge Stephens' temporary stay in place. It was not looking good for the Republican power-grab.

4. Last Thursday (Feb. 9), a three-judge panel of the NC Court of Appeals lifted Judge Stephens' injunction against implementation of S4. The identities of the three judges have not been revealed, and their names continue to be kept secret. That's mainly interesting because Republican Senate President Phil Berger is a defendant in the case, and Phil Berger's son Phil Berger Jr. is now a judge sitting on the NC Court of Appeals. Repeated attempts by news media to find out if Junior had any hand in lifting the injunction have been stonewalled.

5. But never mind ... because last night the NC Supreme Court took over the case, reinstated Judge Stephens' injunction against implementation and scheduled a full hearing on the matter for March 7.

Berger v. Stephens Court of Appeals Race

PamsPicks.net, guest blogging:

NC COURT OF APPEALS JUDGE, Race #1

Phil Berger Jr. (Tea Party/Republican): http://www.philbergerjr.org and Phil 4 NC on Facebook

OMG. This guy again. Better fasten what seat belts you can find, because my appraisal of Mr. Berger is going to be a tad bumpy.

Let's get right to the point.

Phil Junior is Daddy's little boy! Phil Berger Sr. is without any doubt the real Republican power in the state of North Carolina, running the NC Senate with an iron hand and treating Gov. McCrory as a mildly tolerable infant. In that role Phil Senior has done everything in his power to make sure that sonny boy gets a seat on the NC Court of Appeals.

But first, Daddy Dearest tried to get his son a seat in the U.S. House of Representatives. Phil Junior ran in 2014 for the seat vacated by Congressman Howard Coble, backed by wads of money and the full-bore influence of Daddy Phil. What happened? Phil Junior lost the Republican Primary that year, which shocked everyone, not least of whom was his father.

Following quickly that humiliating defeat, Phil Junior got himself appointed to an administrative law judgeship (with daddy's help, we feel certain), earning a cool $100,000 per annum. That job has obviously proven unsatisfying (from a purely partisan perspective), so Phil Junior now has his sights set on bringing his brand of toxic partisanship to the 2nd highest tribunal in the state.

He's running against a good incumbent judge in Linda Stephens, and he's doing it (IMO) to bring the worst conservative instincts into an arena where he can do the most damage.

The final straw in why I can't stand Phil Berger Jr.? Daddy Phil, at the last minute in the short session of the General Assembly this past summer and as President of the Senate, saw to it that the law got changed as regards random "ballot order," insuring that candidates that belong to the same party as the sitting governor get listed first. So now Phil Berger Jr. is listed above Linda Stephens on this November's ballot.

Why does it matter? Numerous studies have shown that being listed first on a ballot can give that candidate at least a slight advantage, especially on down-ballot races like the Court of Appeals race where candidates aren’t as well-known as presidential or gubernatorial candidates.

So, yes, I have absolutely no earthly use for any of the corrupt, puling, manipulative, self-serving and uber-grasping Berger clan. May they all go down in flames. And stay down.

Linda Stephens (Democrat): www.judgelindastephens.org and Re-elect Judge Stephens on Facebook

Stephens was first appointed to the Court of Appeals by Gov. Mike Easley in January 2006, but lost her seat in the general election of 2006. Easley then reappointed her to the Court of Appeals in January 2007 to fill the seat vacated by the election of Robin Hudson to the NC Supreme Court. Judge Stephens won a full term in the general election on November 4, 2008.

Stephens is a magna cum laude graduate of the University of South Carolina and received her law degree from the University of North Carolina at Chapel Hill. She's a progressive and smart judge who has benefited from the endorsements of the NC National Organization for Women, EqualityNC, the Muslim-American PAC, The Black Political Caucus of Charlotte-Mecklenburg, North Carolina Association of Defense Attorneys, NC Academy of Trial Lawyers, and NC Association of Women Attorneys.

Her legal career has been a string of firsts: the first female law clerk to Judge Fred Hedrick of the NC Court of Appeals; the first woman associate, and then the first female partner with her law firm; and the first woman to serve as President of the NC Association of Defense Attorneys.

Stephens was named one of the top 50 women lawyers in the state by Super Lawyers Magazine and was listed among the Best Lawyers in America for her last 11 years in private practice. Since joining the bench, she has earned the J. Robert Elster Award for Professional Excellence and Lawyers Weekly’s Women of Justice Award, presented for “leadership, integrity, service, sacrifice and accomplishment in improving the quality of justice and exemplifying the highest ideals of the legal profession.”

NC Supremes Bob Edmunds Must Face Challenger

BREAKING NEWS
Ruling  Stands: "Retention Elections," unconstitutional

The "retention election" law passed in 2015 -- overturned by a 3-judge panel as unconstitutional in Feb. 2016 -- will stay overturned because of a 3-3 tie today on the NC Supreme Court

Sabra Faires

Background
Last February, a special three-judge panel ruled in Sabra Faires et al. v. State Board of Elections et al. that the Berger-Moore innovation called "retention elections" was and is unconstitutional. The "retention election" law (passed quietly in 2015 to go into effect in 2016) effectively applied to only one human being, sitting Supreme Court Justice Bob Edmunds (R), up for reelection in 2016, because the retention election law mandated that any Supreme Court justice (and only a Supreme Court justice, on which, see below) up for reelection in 2016 (which would be Edmunds alone) did not have to run competitively against a known opponent but was subject to a voter plebiscite instead -- voters would vote only on whether Edmunds should be retained -- "yes" or "no" -- not on him or his known opponent. Under the Berger-Moore law, if by some fluke voters in the majority said "no," then the governor would get to appoint Edmunds' successor. Nice touch, that!

Sabra Faires, a lawyer in Raleigh who also wanted to run for Edmunds' seat, cried foul and sued on constitutional grounds: "retention elections" fundamentally violated the meaning of "election" as a choice. A special three-judge panel in Wake County agreed with her.

The State Board of Elections naturally appealed ... to the NC Supreme Court. The Supreme Court took the case. Interesting, since the retention election law, if it stood legal challenge, would eventually apply to the longevity of every last one of those justices, a clear conflict of interest. Edmunds, of course, recused himself. The remaining six justices split along partisan lines, creating an unbreakable tie of 3-3, Republicans Mark Martin, Paul Newby, and Barbara Jackson on one side, Democrats Sam Ervin IV, Cheri Beasley, and Robin Hudson on the other.

Bob Edmunds

When she spoke in Watauga on April 16, Sabra Faires said that she and the other plaintiffs did not make an issue of the conflict of interest (which plaintiffs could have, calling for a special and impartial panel). With Edmunds recused, it seemed pretty predictable that the court would tie 3-3, which would mean the lower court ruling would stand.

Bottomline
There will be an election in November between Bob Edmunds and whoever comes out on top in the primary June 7th: Sabra Faires, Daniel Robertson, or Mike Morgan. Take a guess who I'm voting for.

Footnote: Why the Retention Law Applied to Supreme Court Justices Alone
Berger Family Values
The original draft of the retention election law included all appellate level judges, meaning both NC Court of Appeals judges and Supreme Court judges. Written to include the appeals court, the law would have ruled out Phil Berger Junior's ability to challenge Linda Stephens. If she were "retained" under a new law, Junior Berger would be shit out of luck.

Phil Berger Senior, who runs Republican government in Raleigh, changed the law to apply only to the Supreme Court, and paved the way for his son.

Rank Nepotism, the Berger Family Way

Daddy Berger

When the "Retention Elections for Judges" bill was filed in the North Carolina General Assembly in March 2015, the law was going to apply to all judges at the appellate level -- judges on the NC Supreme Court and the NC Court of Appeals. That law, as it was finally passed, was recently ruled unconstitutional by a three-judge panel.

That decision is on appeal to the NC Supreme Court (which has a glaring conflict of interest, but let that go for the moment). Justice Bob Edmunds has recused himself from the decision, since he is the only current justice whose longevity on the bench depends directly on whether "retention elections" go forward.

By the time that law was passed, the NC Court of Appeals judges had been removed from the bill, leaving just Supreme Court judges impervious to election challengers, which (just incidentally) left Republican Justice Bob Edmunds the sole judge in the entire state who could not be challenged by another candidate in 2016 because Justice Bob Edmunds is the only justice whose term is expiring this year.

Why were Court of Appeals judges deleted from the law, and when did that happen? It happened in the NC Senate. The Senate took out the Court of Appeals from coverage, and the House went along with that. Why? Inquiring minds think it's because the Boss of the Senate, Phil Berger, was paving the path for his son, Phil Berger Junior, to run (and win, perhaps) a seat on the NC Court of Appeals.

Sonny Boy

Had the House version of the "retention election" bill passed, no judge on the NC Court of Appeals could have been challenged in the 2016 elections by another candidate. Phil Berger Jr. wanted to be a candidate. In fact, he currently is a candidate for the NC Court of Appeals, running against Justice Linda Stephens, a Democrat. If the "retention election" law had applied to the Court of Appeals, neither Phil Berger Jr. nor anyone else could have filed to challenge an incumbent.

It sure looks like Daddy Phil made sure Sonny Boy got his shot. In the process, Daddy destroyed the logic of "retention elections," that they should apply to all of the appellate level, and he signaled to anyone watching just how partisan the motivations were behind the entire "retention election" scheme.

Berger Senior has been trying to facilitate his son's ambitions. In 2014, the father pushed the son as the best replacement for retiring Congressman Howard Coble. Junior ended up losing a primary run-off to current sitting Congressman Mark Walker. After that defeat, Junior was promptly appointed to an Administrative Law Judgeship, earning just over $100,000 per annum.

When Being a Baptist Preacher Ain't Enough!

Dazzled as you no doubt are by the congressional biscuit-stealing of Virginia Foxx, you may be forgiven for paying insufficient attention to the performance of Congressman Mark Walker in the NC Sixth Congressional District.

Mark Walker

Walker defeated The Anointed "company" candidate, Phil Berger Junior, in the Republican primary of 2014, an upset about which Phil Berger Junior has not stopped sobbing since May of 2014. Phil Berger Junior is The Anointed Son of Phil Berger Senior, the Czar of all the Carolinas and the man who can make Governor Squishy jump and who used to regularly mug Thom Tillis too before Tillis became big for his britches and took a seat in the U.S. Senate (he was lame, anyway, as Speaker of the NC House and let Berger in the NC Senate make all the decisions that counted).

Anyhoo, Mark Walker is a Baptist preacher, so the hand of God, obviously, can be blamed credited for his apotheosis. Anyone who gets to sit near Virginia Foxx has made it to the gravy!

The hand of God, as it turns out, evidently had a sprained wrist on the day Walker won, because Baptist preacher or no, Walker has been weighed in the scales and found wanting as a conservative in the U.S. House, mainly because he went along with the crowd and voted for that flaming liberal John Boehner as Speaker, a sin for which Walker must now be forced to burn in the hell of another Republican primary.

A Republican conservative who's more conservative than "conservative" named Kenn Kopf, who evidently drinks acid for breakfast and doesn't even belch, has announced that he is here to kick Preacher Walker out of his job, because Walker was sent to Congress to "change the leadership" and "stop the president’s attack on our people and the Constitution," and has he even done any of that? In a word … no!

What a miserable failure! Kopf said those words about Walker, mind you, only after Boehner dissolved in a resignation puddle and ran down the marble steps of the Capitol, never to be seen again, but Preacher Walker is still going to have to pay for his Original Sin. It's the natural law of conservatives: no one is ever forgiven, unless you're a Duggar.

Not one Original Sin (Boehner!) but two, and the worst one, probably, was allowing the Kenyan Muslim President to confiscate every gun and put conservatives into reeducation camps and force Christians to gay-marry all over the place.